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The year 2017 has seen the emergence of theCongressional Review Act (CRA) as a power-ful political tool. The law allows Congress tofast-track legislation to supersede and can-cel rules recently enacted by federal agencies.

Until now, the CRA has largely been anempty threat because legislation under the act

requires the approval of both houses of Congress and the WhiteHouse. Obviously, presidents are unlikely to approve the repealof a rule that their administration has crafted. But this dynamicchanges when control of the White House shifts between parties.Before this year, the CRA had been used just once, in 2001 by aRepublican Congress and new George W. Bush administrationto dispense with a workplace “ergonomics” rule adopted by thedeparted Bill Clinton administration. This year, the CRA hasbecome a potent weapon under the new Trump administrationand a Republican Congress intent on reversing regulatory initia-tives undertaken by the departed Barack Obama administration.

Now that Congress and President Trump are making extensiveuse of the act, the ramifications of these repeal resolutions becomemore significant. A CRA resolution does not just nullify an exist-ing rule; it categorically and permanently prohibits the agencyfrom reissuing the rule “in substantially the same form” unlessCongress someday passes new legislation authorizing the agencyto reissue the regulation. The key question, then, is what it meansfor a new rule to be “substantially similar” to a CRA-canceled one.

Courts have never authoritatively interpreted this phrase pre-cisely because the CRA has virtually never been used before thisyear. But with the act’s newfound life, it’s almost certain the federaljudiciary will have to do this in the future. When such cases arise,

SAM BATKINS is director of regulatory policy at the American Action Forum.

ADAM J. WHITE is a research fellow at theHoover Institution and an adjunct profes-sor at GeorgeMasonUniversity’s Antonin Scalia Law School.

SHOULDWE FEAR‘ZOMBIE’ REGULATIONS?

Federal agencies and courts will determine what new rules can be advancedfollowing repeals under the Congressional Review Act.✒ BY SAM BATKINS AND ADAM J. WHITE

how will courts interpret the act’s terms? Will they simply look tothe text of the CRA, the ambiguous “substantially the same form”language, or will they broaden their analysis to the legislative historyof the CRA itself? How will current statements from members ofCongress factor into the decisionmaking process? Congressmenand senators have already predicted that some of this year’s over-turned rules will return in some form in the future.

In this article, we argue that future courts should place pre-dominant weight upon the legislative history surrounding thedisapproval of a rule under the CRA. For instance, when Congressrecently used the CRA to cancel the Securities and Exchange Com-mission’s Resource Extraction Rule (discussed below), lawmakersrepeatedly suggested that the SEC “go back to the drawing board”and craft a new rule. In contrast, when Congress used the CRAto cancel the Interior Department’s Stream Protection Rule(also discussed below), no supporters of the resolution expressedinterest in the agency rewriting the regulation, suggesting thatCongress’s purpose in that instance was to cancel the rule basedon its general subject matter.

This interpretive approach won’t be dispositive for all rules,especially when legislative debate is lacking (which it has beenfor several votes). But it does mark the best approach, given theambiguous text of the CRA.

BRIEF HISTORY OF THE CRA

The CRA was adopted as part of a package of major regulatoryreforms after the “Republican Revolution” following the 1994elections. In a sign of the relatively limited reach of the CRA andthe somewhat more bipartisan atmosphere of the 1990s, thelegislation passed 100–0 in the Senate.

The CRA legislation was a response to the Supreme Court’s1983 decision in INS v. Chadha in which Congress lost its “legisla-tive veto,” the ability to undo executive actions through congres-

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sional action alone. In contrast to the procedure struck downin Chadha, however, every CRA resolution must be approved byboth the House and Senate, and then signed by the president. Inother words, a CRA resolution is just the passage of a law, onlywith expedited procedures in the House and Senate. Accordingto the primary sponsors, Sens. Harry Reid (D–Nev.), Ted Stevens(R–Alaska), and Don Nickles (R–Okla.), it was designed to address

“burdensome, excessive, inappropriate, or duplicative” federal rules.The scope of the CRA, unlike many other regulatory reform

initiatives, applies to all federal agencies, including independentcommissions. For instance, actions from the Consumer FinancialProtection Bureau and the SEC would be covered under the CRA.The legislation’s reach was intended to be as broad as possible.The drafters of the CRA were explicit on this, saying it covers:

■ formal rulemaking, the relatively rare, trial-type process forformulating some regulations and for rate-setting,

■ informal rulemaking, the much more common notice-and-comment rules found in the Federal Register,

■ other public information from agencies, usually publishedin the Federal Register, and

■ guidances and other interpretive documents that qualifyas “rules” under the Administrative Procedure Act, but thatare usually exempt from review under ordinary proceduralrequirements.

Once an agency finalizes a rule and reports it to Congress, Con-gress has 60 session or legislative days to consider the rule for repealunder the CRA. Members simply introduce a resolution of disap-proval and it cannot be filibustered in the Senate. Although CRAresolutions take up floor time, the current House and Senate havemanaged to pass more than a dozen measures repealing Obama-eraregulations. The question now is how many of those rules couldsomeday return from the grave, in some form or another?

NEW LIFE FOR OLD RULES?

As previously noted, the CRA states that a disapproved rule “maynot be reissued in substantially the same form.” This language isambiguous; the term “substantially similar” does not lend itselfto an obvious single interpretation.

Fortunately, the lawmakers who originally drafted and enactedthe CRA offered some useful guidance, preserved in the legislativehistory. Whether a subsequent regulation is “substantially similar”to a nullified regulation depends first and foremost on the originalstatute that authorized the regulation. The drafters of the CRAestablished a hierarchy of discretion, from broad to most restrictive,relying on the text and grant of authority of the underlying statute.This was set forth in detail by Reid, Stevens, and Nickles in a joint

President Trump signs legislation withdrawing the StreamProtection Rule on February 16, 2017.

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explanatory statement in the Congressional Record.Three important points emerge from that statement. First,

if the law authorizing the disapproved rule provided broad dis-cretion to the agency, then regulators would likely have broadauthority to issue a substantially different rule. That informationis helpful, but it still does not clarify precisely where to draw theline between substantial differences and minor differences.

Second, if the original law that authorized the initial agencyaction did not mandate a particular rule, then regulators have dis-cretion “not to issue any new rule.” While this does not go directlyto the question of how to interpret “substantially similar,” it doesillustrate how the drafters of the CRA place great importance onthe intent of Congress when it enacted the statute authorizing theregulation with respect to whether a given agency could return tothe regulatory drawing board. If Congress were to strike down theClean Power Plan under the CRA, for example, then the Environ-mental Protection Agency could choose not to issue another ruleat all because no statute specifically requires the EPA to do so.

That second category is important because a substantial frac-tion of federal rules do not have specific mandates and theirunderlying organic statutes are often silent on specifics. Forexample, the ergonomics rule that was struck down in 2001 wasnot explicitly authorized in statute. The Department of Laborinitiated the rule on its own discretion; 16 years after it was struckdown, the Labor Department has not issued another rule on thesame subject matter. Apparently, Labor officials believe that anynew ergonomics rule would be “substantially the same form” asthe CRA-stricken rule and thus likely to be struck down by courts.

A third, and perhaps most important, point from the explana-tory statement is that if Congress had been explicit in its authoriz-ing statute and the grant of power to a federal agency was “narrowlycircumscribed,” then “the enactment of a resolution of disapprovalfor that rule may work to prohibit the reissuance of any rule.” Thiscan be interpreted to mean that if, say, Congress says the level ofparticulate matter in the atmosphere should be limited to 12 micro-grams per cubic meter and a CRA measure strikes that down, theagency is prohibited from issuing that standard again.

The senators’ explanation of this third category has directrelevance for the measures Congress has struck down recently. Forinstance, Section 1504 of the 2010 Dodd–Frank finance legisla-tion mandated that the SEC require resource extraction issuersto disclose payments to foreign governments. That section wasexplicit about the information that companies had to report. YetCongress struck down the rule. For the attorneys at the SEC, howdo they craft a new rule that follows section 1504 yet is somehowsubstantially dissimilar from the rule Congress struck down? It’san unenviable position and one that might be answered by thelegislative history when Congress repealed the rule.

In sum, where there is little agency discretion and Congresshas expressly delegated certain tasks to an agency, even if the finalrule comports with original intent, Congress can change its mindand strike down the rule. How can an agency issue a substantially

dissimilar rule while concurrently following the original intent ofthe statute? The agency likely cannot thread that narrow needleabsent new congressional authorization.

QUALITATIVE VS. QUANTITATIVE APPROACH

To examine the probability of agency action after a CRA resolu-tion of disapproval, we suggest a “qualitative” versus “quantitative”comparison. By “qualitative” we mean broad grants of authoritywith no finite or numerical guidelines. This extends to originalregulations as well. Such authority would seem to allow agenciesto craft new rules, albeit after some time at the “drawing board.”

On the other hand, if agencies are implementing a statute bywhich Congress originally set quantitative standards, but Con-gress repeals the rule under the CRA, then it would seem almostimpossible for an agency to promulgate a substantially differentrule. If the EPA sets ground-level ozone concentrations at 70parts per million and Congress strikes down those standards,what is a substantially different rule? Is 65? Is 75? Quantitativeor numerical prescriptions in statutes or in the text of a regula-tion would seem to make crafting a new rule after a CRA actionnearly impossible; Congress’s decision to cancel the agency’s rulewould seem to effectively rescind the original statutory delegationof regulatory power altogether.

Below, we offer a few contemporaneous and hypotheticalexamples to illustrate this quantitative and qualitative dichotomy.

Resource Extraction Rule / This rule generally required specificdisclosures from companies dealing with foreign governments.Dodd–Frank set no numerical standard, but it did includespecific instructions for the information to be disclosed. Forinstance, section 1504 of Dodd-Frank mandated that an annualreport contain the type and total amount of payments to foreigngovernments or corporations. This appears straightforward, butgiven the rulemaking history it is not. Generally, the resourceextraction rule is more of a qualitative example with some caveats.

A federal court struck down the first iteration of the SEC’sresource extraction rule, so the agency issued a new rule in 2016,within the window for disapproval under the CRA. Congressacted and struck down the measure. After losing in the courts andfailing with Congress and the president, many might assume thisregulation is finished. However, the legislative history surround-ing the CRA resolution reveals that even Republicans voting forthe CRA resolution presumed that their act would not preventthe SEC from promulgating a different resource extraction rulesomeday. House Financial Services Committee Chairman JebHensarling (R–Texas) remarked: “Let’s also remember that thisjoint resolution does not repeal section 1504 of Dodd–Frank. Iwish it did, but it doesn’t…. It simply tells the SEC to go back tothe drawing board.” Likewise, Sen. Mike Crapo (R–Idaho) explic-itly noted that he expected yet another rule: “What the SEC willneed to do is to go back to the drawing board and come up witha better rule that complies with the law of the land.”

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Whether the SEC does actually draw up a new rule will beinstructive, but Congress was hardly specific on the changes orthe form of the third iteration of the resource extraction rulethat lawmakers want to see. Ultimately, the discretion still lieswith the regulators at the SEC to determine if and how a newrule will develop.

For those hoping it never does, the SEC has technically alreadyfulfilled its statutory obligation. It did issue a final rule and thena court struck it down. It then issued another regulation and theelected leaders of the nation rescinded it. The SEC might defer tothe other branches of government and acknowledge that creatinga substantially different rule would be difficult and would almostassuredly lead to another lawsuit. If regulators do proceed, we’llat least have one interpretation of “substantially the same form”in the next two to three years.

Stream Protection Rule / In contrast to Congress’s view of theresource extraction rule, congressional majorities clearly had nointerest in preserving the Department of Interior’s authority topromulgate a new “Stream Protection Rule.” Interior’s regulationwas ostensibly designed to prevent dumping coal deposits intowaterways, a largely qualitative and discretionary rulemaking.

The rule united environmentalists while also acknowledging itwould adversely affect coal industry employment and have a socialcost of more than $1 billion. Given the political forces involved,as soon as the regulation was published, Senate Majority LeaderMitch McConnell (R–Ky.) declared he would use the CRA toundo the regulation. He noted the rule was “part of the [Obama]administration’s plan to demolish these coal communities rightnow and long after the president has left office.”

Presented with an opportunity to use the CRA to nullify thisrule, majorities in both houses—including some Democrats—over-turned the rule. And the commentary accompanying their votescontrasted sharply with the aforementioned commentary accom-panying the Resource Extraction Rule’s CRA resolution. As tothe Stream Protection Rule, Rep. Paul Gosar (R–Ariz.) remarked:

“But the fact is, you can’t put lipstick on this pig. Whether youcall it the Stream Buffer Zone Rule or the Stream ProtectionRule, the rule still stinks.” Rep. Rob Bishop (R–Utah) was evenmore frank, recognizing that Congress should go forward and setspecific standards for stream protection, not let federal agencieswrite new rules. He noted, “What we are doing here today withthis effort is to reestablish the Article I authority that we have inthe Constitution by saying we are responsible for the policy, notsome agency of the executive branch.”

Democrats were also aware of the power of the CRA, predict-ing the Stream Protection Rule would not return. Sen. Chris VanHollen (D–Md.) charged: “The Congressional Review Act doesn’tmake sense here. If you want to trim a tree, you don’t chop itdown and bury it under cement so it will never grow again.” Healso predicted the permanent end of the rule, remarking: “[A]resolution of disapproval under the Congressional Review Act

does not just send a rule back to the drawing board. Instead, theresolution repeals the rule and prohibits the agency from everproposing anything like it again.”

In contrast to the resource extraction measure, it is clear Repub-licans don’t want the Stream Protection Rule returning and Demo-crats don’t expect it to return. Given the congressional debate, aredo of the rule, at minimum, would likely have to demonstrateinsignificant costs and neutral economic effects to the coal industry.

Clean Power Plan / The Clean Power Plan (CPP) mandates green-house gas standards for existing power plants, but the deadlinefor a CRA resolution repealing the CPP had already expired whenPresident Trump took office. Still, the CPP offers an interestinginterpretive hypothetical.

The CPP mandates a 32% reduction in the emission of green-house gases by 2030, brought about by using three “buildingblocks”: heat-rate improvements at coal plants, a shift in electricitygeneration from coal to natural gas, and a build-out of zero-carbonenergy. If Congress could use the CRA to nullify the CPP, thenwhat would a “substantially” different CPP look like? Is a 28% cutsufficiently dissimilar? What about a 35% reduction? Suppose thenext president sets a goal of reducing emissions by 80%; would thatcount as substantially different? Here, one might be able to reason-ably argue that a 3% or 80% reduction would not be substantiallysimilar to the original CPP, and thus not prohibited by the CRA.

Or suppose that current EPA Administrator Scott Pruitt reis-sues the CPP, but includes only one building block: limited heatrate improvements for some aging coal plants, reducing emissionsby 2–3% but costing a mere fraction of the CPP’s original $8.4billion estimated burden. Could the EPA reasonably argue thatthis new rule is substantially dissimilar from the prior regulation?

In this context, the EPA’s argument would be bolstered by thebroad discretion that the Clean Air Act vested in the agency inthe first place. Congress never spoke explicitly about greenhousegases in the Clean Air Act, so the EPA could be just as creative inreissuing a new rule. Even if a new CPP is terrible policy, it mightbe a terrible policy that the CRA does not prohibit.

Overtime Rule / In 2017, the Labor Department greatly expandedthe overtime threshold for non-exempt employees, from thoseearning up to $23,000 annually to those earning up to $47,000.This rule fell just days outside of the CRA review window, but itoffers a more restrictive quantitative example compared to the CPP.

Assume that Congress could have used the CRA to repealthe Overtime Rule. Indeed, before Congress adjourned in 2016,members and staffers openly discussed repealing the rule; manystaffers suggested that they wanted new legislation establishingovertime thresholds, not a new rule. To them, a CRA vote wouldhave meant no new expansions from the agency.

Like the other quantitative examples above, imagine a newadministration attempts to resurrect the Overtime Rule after a CRArepeal. Is a $40,000 employee earnings limit substantially similar,

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or $55,000? Suppose it’s two decades until a new rule is consideredand it sets the threshold at $75,000. Perhaps the agency could arguethat rule would be dissimilar. However, adjusting for inflation thethreshold would still be around $47,000 in 2017 dollars.

There is hardly a knowable legal path to regulating again afterCongress strikes down a rule with specific, quantifiable standards,whether in the regulation or from the authorizing statute. Inpractice, such a resolution would act as an absolute bar to a newrule, save new delegation from Congress.

Endangerment Finding for Aircraft / The final example involvesa rule or determination from the EPA that aircraft emissionscontribute to global climate change and endanger public health.Many legal experts consider the endangerment finding a neces-sary condition for regulating specific greenhouse gas emissionsfrom aircraft under the Clean Air Act. There was a reason, afterall, that the Obama administration chose to begin with similarendangerment findings and then followed with emissions regula-tions for vehicles and existing power plants.

What would have happened if Congress had used the CRA todisapprove and nullify the Aircraft Endangerment Finding? If itis a legal prerequisite to regulation, how could the EPA have con-ceived of a substantially different regulation? In cases like these,it is binary: either the EPA views these emissions as a danger topublic health or it does not. With a CRA vote, Congress wouldhave said the agency can’t reissue a rule that determines theemissions endanger public health. Without a new finding, thereis no subsequent regulation on aircraft. In the future, these sortsof binary, authority-or-no-authority rules might prove attractiveto members of Congress who want to preclude specific rules fromever returning.

WHAT DID CONGRESS REVEAL?

As the debates display, there was mixed opinion on whether allof the repealed rules would return in some form or if new ver-sions were precluded by the CRA vote. Given that public remarksmight not always mirror personal feelings, we reached out toseveral House and Senate staffers on the condition of anonym-ity to gauge their intentions and instincts on whether variousdisapproved rules would return.

One Senate aide remarked, “A majority voted for [repealing]each regulation, so it’s fair to say they don’t want to see the rule.”However, he acknowledged, “In the next five to 10 years, the Fed-eral Communications Commission rule [on consumer privacy]seems to have generated a lot of opposition, so an activist FCChead could be pretty clever coming back to that in a way that isplausibly not the ‘same form.’”

There seems to be universal recognition that the FCC’s privacyrules could return, although all agreed that would have to bedecided by the courts. Another aide noted, “I think Congress willattempt to act on one this year or next through legislation thatmakes it clear [internet service providers] are subject to privacy

rules, but that the [Federal Trade Commission] (not the FCC) isthe privacy regulator and it generally treats ISPs and edge provid-ers like Google and Facebook the same.” Another aide noted thathis boss didn’t want to see any new rules regardless of the form.If there were to be new regulation in these fields, Congress wouldact with new legislation.

Finally, the press has already begun speculating on the motivesfor repealing each rule and which ones might return. The Huffing-ton Post focused on the rescission of drug testing requirements forunemployment applicants. The conventional thinking is that theTrump administration will write even tougher standards for moreexpansive testing than the Obama-era rule. That would markthe first chance to determine a substantially dissimilar rule. Rep.Kevin Brady (R–Texas), who sponsored the resolution to repealthe drug testing rule, acknowledged, “My understanding is thatthey will promulgate a new rule.” It will then fall to the Trumpadministration and perhaps the courts to determine what “sub-stantially the same form” means in the context of reissued rules.

FROM CONGRESS TO THE COURTS

Of course, the CRA will not interpret itself. In the end, the fed-eral courts will determine the act’s capacious terms, once anappropriate case presents itself. Such cases might take a varietyof forms.

First, pro-regulatory activists might try to bring a constitu-tional lawsuit challenging the CRA itself. Specifically, they mightseek out sympathetic persons, companies, or other entities whowould have benefited from a rule that Congress nullified witha CRA resolution and attempt to convince judges that the CRAitself violates the Constitution. (One progressive organization,the Center for Biological Diversity, already has filed a federallawsuit in Alaska arguing that Congress and the president areconstitutionally prohibited from using the CRA to impede anInterior Department regulation.) While a direct constitutionalchallenge would aim primarily to nullify the CRA, not interpretit, such litigation could theoretically urge the court to adopt a

“narrowing construction” of the CRA’s terms to limit the case’sconstitutional stakes.

In any event, this approach faces several jurisdictional andsubstantive impediments. First, plaintiffs attempting to bringsuch a constitutional challenge would need to show that theyhave standing to bring the suit, including a showing that a signedCRA resolution injures them in a way that can be redressed bythe courts. Moreover, courts generally decline to hear cases inwhich plaintiffs desire simply to increase regulatory burdens onthird parties. Second, even if the plaintiffs manage to leap thesesignificant jurisdictional hurdles, they still would need to for-mulate a compelling substantive argument that the CRA is notjust bad policy but unconstitutional, and so far the CRA’s criticshave failed to find such a silver bullet. (The Center for BiologicalDiversity, for example, argues that the CRA should be struckdown because of INS v. Chadha, but the CRA contains precisely

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what Chadha’s “one-house veto” lacked: a resolution approved byboth houses of Congress and signed by the president.)

Instead of a direct constitutional lawsuit, the more likelyscenario is one in which parties challenge an agency’s actionor inaction in the aftermath of a CRA resolution. That is, ifCongress passes a CRA resolution nullifying a regulation andthe relevant agency acquiescently declines to resurrect the rule, apro-regulatory party might sue to try to force the agency to act.Or, if an agency attempts to resurrect a CRA-stricken regulation,perhaps after a change in presidential administrations, then aparty might file a lawsuit to block the agency from implementingthe new regulation.

A challenge to agency inaction would, like a direct constitu-tional challenge, face significant jurisdictional and substantivehurdles. Agencies generally retain immense discretion not toundertake a rulemaking process. The courts are generally loathto force agencies to regulate, just as courts are generally loath toforce prosecutors to prosecute; thus, agencies possess somethingakin to “prosecutorial discretion.”

But there are two important exceptions that the CRA’s criticsmight seize upon. First, if a substantive statute like the Clean AirAct appears to require the agency to promulgate a regulation, thencourts are more likely to entertain a lawsuit forcing the agency’shand. Second, if an agency announces that it cannot undertakea new rulemaking solely because a prior CRA resolution hasstripped the agency of its authority on the subject, then a partycould file a lawsuit challenging the agency’s position that it lacksregulatory authority. In such a case, a court could conclude thatthe agency has not lost its regulatory authority—because new rulesrequested by the challengers would not be “substantially” similarto the CRA-repealed rule—and direct the agency to consider themerits of a new regulation. This would be similar to what theSupreme Court required of the EPA in Massachusetts v. EPA, wherethe EPA disclaimed authority to regulate greenhouse gas emis-sions as air “pollutants.”

To avoid that latter option, an agency would be wise to citetwo grounds for declining to undertake a post-CRA regula-tion: namely, that the CRA resolution stripped the agency of itsauthority, and that the agency would exercise discretion not topromulgate the new regulation even if the CRA did not prevent it.This might prevent challengers from suing over agency inaction,at least so long as the relevant underlying substantive statute doesnot require the agency to regulate.

If a lawsuit challenging agency inaction is an unlikely route toadjudicating the meaning of the CRA’s “substantially the sameform” provision, then a lawsuit challenging agency action is themost likely path. That is, if an agency—perhaps after anotherpresidential election—attempts to promulgate a regulation relatingto a matter that had been the subject of a previous CRA-nullifiedregulation, then parties affected by the new regulation will almostcertainly file a lawsuit against the agency, arguing that the new regu-lation is unlawful under the CRA. In such a case, the court would

squarely confront the question of whether the new regulation is of“substantially the same form” as the old CRA-nullified regulation.

No matter how the issue reaches the court—be it a lawsuitchallenging agency action or agency inaction—the court’s analysiswould not involve application of the increasingly controversialdoctrine of “Chevron deference.” Normally a court defers to anagency’s interpretation of a statute’s ambiguous terms—and theCRA’s “substantially the same form” provision certainly seemsambiguous. But as the courts have stressed, Chevron deference isappropriate only when the statute at issue is one that has beencommitted to that particular agency’s exclusive administration—e.g., provisions of the Clean Air Act, which are administeredexclusively by the EPA. Thus, when an agency is administered bymultiple agencies—e.g., the Freedom of Information Act or theAdministrative Procedure Act—then no agency receives Chevrondeference in interpreting it. The CRA falls neatly into this lattercategory, so the courts would likely interpret the CRA’s termsundeferentially (or, in legal terms, “de novo”).

But to be clear, the court’s specific task would be to interpretthe meaning of the CRA’s terms and not the meaning of a CRAresolution, though the two are deeply intertwined. To interpretthe CRA’s “substantially the same form” provision, the courtwould apply the traditional tools of statutory construction: themeaning of the CRA’s words, both as those words are normallyunderstood and as they might be understood in this particularlegal or legislative context; the CRA’s broader structure; the CRA’slegislative history; the broader set of presumptions (or “canons”)of statutory construction that impute congressional intent inone interpretive direction or another; and so on. Taken together,the court would be attempting to ascertain Congress’s “intent,”though particular judges vary widely in the extent to which theyare willing to look beyond the statutory text’s plain meaning forindications of congressional intent.

CONCLUSION

As we have sought to make clear in this article, the CRA is bestunderstood as embodying Congress’s understanding that properapplication of the “substantially the same form” provision willturn, in each case, on both the substance of the statute thatCongress originally enacted authorizing the regulation, andCongress’s subsequent purpose in passing the CRA resolution.In other words, the Congress that enacted the CRA intendedfor courts and agencies to pay attention to the intentions of thesubsequent Congresses that use the CRA.

But this is a difficult standard for any court to apply, especiallyfor judges who are wary of ascribing such flexible meaning to anystatute. Ironically, the judges who are ordinarily the most skepti-cal of agencies might also be the most skeptical of interpretingthe CRA flexibly to limit future agencies. And the judges whoordinarily treat statutes more malleably might be the ones mostlikely to construe the CRA strictly—but in service of preservingthe agencies’ discretion and power in the future. R